DocketNumber: Calendar No. 27,002
Citation Numbers: 190 Mich. 539
Judges: Bird, Brooke, Kuhn, Moore, Ostrander, Person, Steere, Stone
Filed Date: 3/30/1916
Status: Precedential
Modified Date: 9/8/2022
This mandamus proceeding is brought by the relator against Patrick H. O’Brien, circuit Judge, to vacate an order entered in the case of E. F. Perry & Co. v. Chesbrough Lumber Co., retaxing relator’s costs therein, and requiring him to tax the costs of relator as taxed by the clérk of said court, or to dismiss the appeal taken from the taxation thereof by said clerk. Questions are raised about the regularity of the appeal from the taxation of the clerk; but, as the case is fully argued, we will dispose of it upon the merits. There were three cases in the circuit court: Packard v. Lumber Co., E. F. Perry & Co. v. Lumber Co., and the case of the Chesbrough Lumber Co. v. Railway Co. In each of these cases Ches
“The right to recover costs is conferred by the statute, and did not exist at common law. It is to the statute, therefore, that we must look for the authority to recover costs in any given case.”
The applicáble statute under the head, “Fees of Witnesses,” reads:
“For attending in any suit or proceeding pending in any court of record one dollar for each day and fifty cents for each half day * * * for traveling at the rate of ten cents per mile in coming to the place of attendance to be estimated from the residence of such witness if within this State, or from the boundary line of this State, which such witness passed in coming,if his residence be out of the State,” etc. Section 11221, 3 Comp. Laws (3 Comp. Laws 1915, §§ 14603; 13720, note; 14400, note).
The language of the statute is not ambiguous; it is, “For attending in any suit or proceeding pending in a court of record.” There is no suggestion that if one party in a suit pays the mileage fee of a witness in that suit, it shall inure to the benefit of another party in another suit and absolve him from paying the mileage.
Similar statutes have been construed. See Waterman Co. v. Lockwood (C.C.), 128 Fed. 174, and cases cited therein. Vernon, etc., R. Co. v. Johnson, 108 Ind. 126 (8 N. E. 700); McHugh v. Railway Co., 41 Wis. 79.
The order retaxing the costs should be vacated, and the costs remain as taxed by the clerk.
The writ of mandamus will issue, with costs to the relator.